May 02, 2006

Scooter Libby Reads the News

by emptywheel

Libby's lawyers put on a breathtaking display explaining the reasons why they need to get every kitchen sink used at Time Magazine, NBC News, and the NYT (thanks to Tom Maguire for getting thefiles). The short version of their argument is that Matt Cooper is biased, Andrea Mitchell is suspicious, and Judy Miller is unreliable. But I'm also fairly certain that they are using Judy's and Cooper's efforts to maintain Libby's own confidentiality as evidence against their credibility.

I'm fairly sympathetic to the general direction, though not the scope, of Libby's Mitchell and Cooper requests. I think Libby ought to be able to establish, in court, what the hell Mitchell was talking about when she claimed to have known of Plame's employ at the CIA. And he ought to be able show that Cooper's notes do not mention some of the things Cooper has testified to (if in fact they do not).

But Libby's filing related to Judy and the NYT is a piece of work. An amazing piece of work.

Libby starts by totally mischaracterizing the nature of the lie he is accused of telling to Judy. He does this by citing the chronology in the first charge of the indictment, pretending that is what he is accused of lying to Judy about.

It alleges that on June 23 Mr. Libby "informed [Ms. Miller] that Wilson's wife might work at a bureau of the CIA," Count One, P 14; that on July 8, Mr. Libby advised Ms. Miller of his belief that Mr. Wilson's wife worked for the CIA, id. P 17; and that on July 12, Mr. Libby spoke with Ms. Miller about Ms. Wilson's employment, id. P 24.

Libby's filing then goes on to provide a shitload of evidence that Judy's comments about these meetings are inconsistent. But he points to precisely the same kind of language games that I have suggested Judy used to shield Libby and/or other members of the cabal. For example, Libby points to the language she uses to describe the June 23 meeting.

For example, she has written that she testified to the grand jury only that she "believed [her June 23 meeting with Mr. Libby] was the first time [she] had been told that Mr. Wilson's wife might work for the CIA."

Libby no doubt knows why she used that language better than I do, but I'd hazard a guess that Judy's hiding an earlier mention of Wilson, possibly by Libby himself. Libby goes on to complain about the language Judy used with her colleagues at the NYT.

She was even more equivocal with her New York Times colleagues, telling them that her notes "leave open the possibility that Mr. Libby told her [on June 23 that] Mr. Wilson's wife might work at the agency."

This is where I lost my breath. A lot of ink has been spilled about how hostilely Judy treated the NYT's story on her involvement. And on this account, I'd bet a great deal of money, enormous sums, that she used the qualified, "leave open the possibility" because Judy didn't want her colleagues to make the claim that her notes incriminated Libby on an IIPA violation. When in fact they did. Judy was protecting Libby when she used this qualifier!!! But now Libby is using it to impugn Judy as a witness.

And it gets better. Libby then goes onto to complain that Judy didn't admit to the June 23 conversation at first.

Notably, Ms. Miller did not remember that the June 23 conversation had even occurred until after her first grand jury appearance when she came across a notebook recording the interview.

Uh, yeah Scooter, she didn't recall that conversation because you gave her clear instructions that she shouldn't recall it, not if she could help it, and she went to some length to try to comply with your request.

Libby goes on at some length, repeatedly portraying comments Judy almost certainly made to limit the damage her testimony would do to her buddy Scooter as proof that she is unreliable.

But the whole argument is based on a ruse. I noted above, that Libby quotes from the chronology of the indictment, pretending that the events rehearsed in the chronology are those he has been accused of lying about. But that's a misrepresentation. Conveniently, Libby makes no mention of the only thing relating to Judy he has been accused of lying to investigators about:

LIBBY did not advise Judith Miller, on or about July 12, 2003, that LIBBY had heard other reporters were saying that Wilson’s wife worked for the CIA, nor did LIBBY advise her that LIBBY did not know whether this assertion was true;

Libby spends a good deal of time challenging the accuracy of details from Judy's testimony about the earlier meetings. But nowhere does he suggest she was mistaken or inaccurate in her general assertion that Libby had discussed Plame with her twice before the July 12 meeting. But if she wasn't mistaken about the general assertion, then the claim that Libby could have suggested on July 12 that he didn't know whether assertions about Plame were true--assertions he had already presented twice as true--is ridiculous!

Libby's not after Judy's notes to impugn her wrt the one Obstruction charge she is name in. He's after her notes so he can show just how many people were leaking to Judy about Joe Wilson and Plame. And to try and get her notes, he's attacking her for all the actions she took precisely to heroically protect Libby and the cabal.

It's a risky strategy, Scooter. At some point, Judy's going to grow weary of playing your fall gal.

Comments

Ok, I just commented on this at the bottom of the Rove thread. Isn't Libby claiming that everybody was talking about Plame and that means he had no reason to lie AND that nobody was talking about Plame and that means he had no reason to lie. I'm totally confused. Look at footnote 5, he makes both arguments in the same paragraph.

Good catch, but I think their argument is slightly different. First, they're trying to do several things with this language--win broad access to the NYT's notes, but be able to respond to spin whatever they find as helpful to them. It seems the honestly don't know whether the NYT would have heard already about Plame. So they want to go after earlier Marin leaking (that Libby no doubt directed, so he's got a good idea that Martin, following the talking points, didn't use Plame's identity). But they want to include both possibilities (that someone mentioned Plame) just in case.

I said this over at DKos, though. I haven't read the media response to this. But I suspect they will not be as attuned to the inconsistencies WRT the indictment as you or I. I'm sure they can argue better than I to defend their First Amendment rights (though I doubt that it protects intra-office communication at NYT that is not otherwise protected under attorney-client privilege. But I question how well they'll be able to show that much of the requests from Judy, in particular, are totally irrelevant given her utterly minor part in the indictments.

Bennett's cavet at FN 3, about whether or not Judy has been fully forthcoming to him. Bennett knows she hasn't. As do we. And Libby is using that to make Judy appear unreliable, when she's doing it for the cabal.

On page 18, they appear to be setting up their argument about Martin. If she was only talking to reporters based on Wilson's credibility, then it must mean OVP was doing so. This goes to your point, William. He's trying to turn Martin into a friendly witness for him at trial.

Not quite, it seems - check out footnote 5 on p. 19, which basically shows that either way you slice it with Martin, they're going to try to turn her role to their advantage.

I take it the prosecution's alternative explanation for the relative rarity of administration officials disclosing info on Plame to reporters is that they knew to be careful with its disclosure, not that the information was not important, and Exhibit A in support of this alternative explanation is, of course, Fleischer. I am very curious now as to whether Martin is going to be a hostile witness for the prosecution or not.

Here's a thought. Rusert talked to NBC vice president after the Libby conversation. There must be some record of that. But I suspect that conversation would reflect badly on NBC's opinion of Libby. Which goes along with Russert's attempt to quash Fitz' subpoena because he wanted to stay on nice terms with Libby. Imagine if the record says, "Libby throws a hissy fit because Chris Matthews reported correctly. What an ass."

I found the descriptions of Miller's notebooks to be pretty interesting. She had all sorts of versions of the name, including Flame and Plame. I'd love to see with my own eyes those notebooks. I've always assumed Libby told her Flame/Plame directly, but the account of the notebooks given by Libby's lawyers makes me think it even more. I thought emptywheel nicely shows how Libby, though his lawyers, are going to trash Miller every which way, even though she single-handedly saved him from the worst possible charge on the table.

I wonder if Miller would ever turn on him if things get particularly nasty? Nah, no way. It would mean she'd admit to perjury during her previous testimony.

I find it a bit odd that, with all the trashing of Miller, they don't even mention the fact that she lost her notebook. If I were making the case that someone was unreliable, I would certainly bring that up.

So the Victoria Wilson notation--perhaps the only one--says, "Victoria Wilson -- works in unit." No we've got her using the words bureau and unit to refer to where Plame worked. Does the "works in unit" suggest Judy was talking to someone IN Plame's unit at CPD? Is there anyway the context would suggest Fleitz or Bolton were her source?

FWIW, if I had to guess, I'd guess that Bolton gave Judy the name and phone number of Wilson. If you buy my theory that Bolton would have gotten a shot at the INR memo, then he would have known before June 10 that Wilson was the unnamed ambassador. And I imagine it wouldn't have taken too much to get internal State data on Wilson's phone number.

Ockham: Isn't Libby claiming that everybody was talking about Plame and that means he had no reason to lie AND that nobody was talking about Plame and that means he had no reason to lie. I'm totally confused.

Not a lawyer, but back when I was active in an effort to organize the university's graduate students, lawyers explained to me that it's not uncommon to present two contradictory arguments simultaneously in legal proceedings--hoping that one or the other argument "sticks." They also mentioned that this tactic can backfire if you confuse the jury too much.

Of course, the unionization effort failed. So maybe these lawyers were full of it. Let me turn that one into a question: were these lawyers full of it?

"How does Libby know that Calabresi was the Time reporter who interviewed Wilson?"

I'm not sure that they "know" this since they qualify it with the word "probably."

The other co-authors of the article--Cooper and Dickerson--have penned their own accounts of their reporting without mentioning a call to Wilson (at least I think that is the case), so it is probably an educated guess that Calabresi, or some other unnamed staffer on Cooper's team, made the call to Wilson.

"How does Libby know that Calabresi was the Time reporter who interviewed Wilson?"

I think that Calabresi interview both of them for this article, and asked Libby what his reaction was to what Joe Wilson said.

In the article from July 17, 2003:

...

In an interview with TIME, Wilson, who served as an ambassador to Gabon and as a senior American diplomat in Baghdad under the current president's father, angrily said that his wife had nothing to do with his trip to Africa. "That is bulls__t.

...

In an exclusive interview Lewis Libby, the Vice President's Chief of Staff, told TIME: "The Vice President heard about the possibility of Iraq trying to acquire uranium from Niger in February 2002. As part of his regular intelligence briefing, the Vice President asked a question about the implication of the report.

I just heard a full 30 minutes of Jason Leopold being casually interviewed and taking questions on a liberal talk show.

With the usual caveat that the experts here generally assess Leopold's credibility as being somewhat less than Waas and more than the traditional media, I found it much more interesting to hear him speak that to parse through his carefully phrased articles.

The bottom line is that he sounded VERY confident of the following:

1) GJ meets tomorrow at 9:30 EST
2) Rove received a target letter a month ago
3) Fitz had charges drawn up a month ago for false statements and perjury, but not obstruction
4) The "no target letter" spin was carefully phrased by Luskin to mean "only in relation to Rove's most recent appearance"
5) The "nothing for at least 10 days" story was spin control to keep the story out of the news cycle.
6) A Friday press conference is predicted to be announced Thursday
7) The investigation will continue to remain open.
8) Rove will be indicted for false statements and perjury, and conceivably, but not probably, obstruction of justice.

And "Kim ====" -- (no offense to the other Kim) -- well, you may be right. This one may fizzle. And you know, Kim ====, I almost hope you are right. I certainly understand where you're coming from on this, because even though I disagree with his politics, Karl is such a good person, such a patriot, such a delightful and caring human being, that it would be a tragedy for his long career of selfless public service to end in disgrace and humiliation.

If I might try to bite through to the meat of your very tough ironic nut, are you saying that because you think he is bad, then he should be indicted? Why bother with crime investigation?
=============================

In repeating their claim that Fleischer may have been a subject of the investigation, do you think that Team Libby is just working from the published reports they cite in support of that idea, or do you think they have some more substantial evidence that that was the case, which for one reason or another they can't explicitly bring up? We know that both Fitzgerald and Libby's defense have filed stuff related to Fleischer under seal, and perhaps that might explain it? What's up with that, anyway? One obvious explanation is that it has to do with classified information - and it is exactly Team Libby's suggestion here that Fleischer may have shared classified information with reporters, and thereby made himself vulnerable to charges in the investigation.

I'm not sure it makes a difference. I'm convinced they've leaked to the press to create those published reports, although I admit I have no evidence of that. I agree with you though, they seem to be implying that Fleisher copped a plea. And whether or not that's true, it does seem to be a handy strategy for them right now. I don't think it'll play that well at trial, though.

I suspect Ari got some immunity, but I also suspect he wasn't under that much danger anyway. I kind of suspect they tried to launder this through Ari and he, being as much of an asshole as they are, realized it, and refused to play along.

But like I've been saying, they spent some energy last summer framing Ari, so they're going to use that!!

ew - So you think on July 7 Libby was essentially trying to encourage Fleischer to leak Plame info, while providing himself enough cover by telling him it was hush-hush and on the qt, without actually telling him it was classified?

I agree with your arguments about the framing of Fleischer last summer, with this addition: he was getting framed by State folks as well, thinking Fleischer was part of the White House team. After all, some of those leaks about Fleischer perusing the INR memo on AF1 came from Powell, pretty obviously.

There's some argument over Fleischer going on under seal, and I'm curious as to what it is.

I have a slightly different read on Fleischer's involvement. Based mostly on the Dickerson article in Slate, I think Fleischer was a good team player back in July 2003, but he was smart enough to realize not to mention Wilson's wife. In fact, if you look at what Fleischer actually said, it really looks like the safe (and smart) way to accomplish the Cabal's goals. The thing that set off Libby and Cheney was the idea that Cheney sent Wilson. Even State would have played along with the idea that low-level CIA people sent Wilson.

When the whole thing blew up in their faces, Fleischer (ex-Administration official) made a pretty simple calculation and decided to tell everything he knew. Libby now desperately needs to impugn Fleischer's credibility because Fleischer didn't stick with the cover story. With all that, I can't imagine what that sealed argument is about. And I thought I had a pretty good imagination about this case.

I think Ari is a self-serving a-hole. That said, I also think he is an extremely smart self-serving a-hole. He saw this coming a mile away and gracefully stepped out of the way. (He didn't leave his position to 'spend more time with the family'.) Now he gets to say that he loyally served the President but spoke the truth, and at the same time - he looks like a savvy operator. Win, win, and double win. If you were a Fortune 100 company or a rising political star, wouldn't you want Ari on your team?

I think you're mistaken that those leaks came from Powell. I'd be some money on it. Some of those leaks came in stories also framing Powell. And everyone ever quoted from State seems to have rightly downplayed INR memo on July 7, knowing the questions Fitz had asked about it, and knowing the reasons why.

There were a couple of hundred people travelling with Bush. I have yet to hear, in fact, whether or not Hughes was there. But I would warrant there was another now-former Admin official on the plane to leak about Ari.

I think Ari was working off talking points with Dickerson (he must have been, since Barlett was working off the same talking points). But Libby has as much as told us that the people who were working off of talking points--notably, Cathie Martin--didn't leak Plame's identity.

Fitz has the luxury of being able to prove a conspiracy to smear Wilson including some classified information (including details from Wilson's trip). And on top of that, evidence that Libby and Rove went beyond the talking points with reporters (and Pincus' Mr. X too, probably). I think libby was trying to muddle the issue with Ari. But Ari, like a good talking head, stuck to the approved talking points.

To obs'd: You probably read two threads in the thirdweek of April. I think those two memoranda of opinion apply to the topic ew is discussing with respect to the tightrope the press official has to toe; and there were a few in depth threads last year on this here, though Libby's linebacker and deep safety seem to have a standard nickel alignment, with the impression they know Fitzgerald's set; but there is some peculiar persistence to try to cause a lot of fumbling. I think ew is saying Fitzgerald has a good fullback headfake maneuver to cover this. Walton is playing contrite zebra here. One of the difficulties, I imagine, is much of the strategy on both sides defense and prosecutor emanates from people trained in government service. We trust the judge to keep refreshing the process, as he stated in other places, while observing deference to what has to occur ex parte; though I observe in camera is omitted from the May 3, 2006 document to which you link ["2005-CR-394~9:45:42~5-3-2006-a.pdf"]; the prior one on this topic has the filename "2005-CR-394~13_38_46~4-5-2006-a".

Obsessed, I have two reactions to Walton's ruling, and neither are good news for the defense:

One, he doesn't trust Libby's legal team to keep to itself information it gets during an adversarial hearing on Sec. 4 evidence - a distrust well grounded in Team Libby's tactics so far.

Two, classified evidence the Libby team might see as a result of a court ruling in its favor in a Sec. 4 proceeding would still not be introducible during the trial, as the jurors are unlikely to all have the necessary clearances. That'd make for a farcical situation in which the two sides refer to evidence the jury can't see, trying to build arguments on evidence the jury can't evaluate.

Thanks for the information on radio program you heard. The program you heard was I believe the Peter Collins show, the audio is not up yet for May 2nd.

Here is Leopold on Counterpoint on May 1st. Click on May 1 and forward to about half way through the program and you will hear Leopold on Plame. Nothing really new, but interesting for me as I have never heard him.